The seemingly innocent question posed by a Boston rental agent to Gladys Linder when they were searching for an apartment was “Where are you from?”

“Venezuela,” she answered.

Gladys and her husband went on to find an apartment a month later without further incident. But she found the question about her national origin insulting and upsetting.

This is Massachusetts, and you know what came next.

Stokel filed a complaint with the Boston Fair Housing Commission, claiming that rental agent’s question was discriminatory and caused her to suffer fear, anxiety and sleeplessness over a three-year period.

Seriously?

Massachusetts General Laws Chapter 151B and the Boston Fair Housing Commission Regulations make it illegal for any licensed real estate broker “to cause to be made any written or oral inquiry or record concerning . . . national origin.”

Although this was the agent’s first discrimination complaint and there was no discriminatory impact on the tenants at all, the Commission found that the question itself was unlawful and issued one of the largest penalties I have seen in recent years — $10,000 in emotional distress damages, plus $44,000 in attorney’s fees and costs and a $7,500 civil penalty against the broker — a whopping $61,500 in total liability for this single question, not to mention the tens of thousands the agent had to pay for defense legal fees.

The case went up on appeal, and fortunately the Massachusetts Appeals Court exercised some common sense and slashed the award, likely by more than half pending further proceedings. But the court let stand the commission’s ruling that the one innocuous question did indeed violate the discrimination laws. So the broker will remain on the hook for a sizable liability.

Honestly, I’m having a lot of trouble with this ruling. It appears that the broker was simply engaging in some harmless small talk by asking the applicant where she was from. There was no evidence that the broker refused to rent to her or took any other discriminatory action against them. What if the applicant had a Southern accent and said she was from Alabama? That’s not illegal discrimination, but since she is from another county, it makes the question unlawful discrimination? Unbelievable! This is one of those cases where the anti-discrimination laws result in a totally absurd result.

So thank you to the Boston Fair Housing Commission for making small talk illegal. Unfortunately, the lesson to be learned from this case for rental agents and Realtors: Don’t ask a client where they are from. I kid you not. Only in Massachusetts…

__________________________

Richard D. Vetstein, Esq. is an experienced Massachusetts real estate attorney who often consults with Realtors and rental agents on their legal and ethical duties. He can be reached at info@vetsteinlawgroup.com.

Laws are rarely crystal clear. In fact, most use language so ambiguous as to allow for a variety of interpretations depending on one’s underlying motivations. Not intentionally, mind you. I can only hope the legislators closest to bills begin with good intent, but they’re usually unable to imagine or address the many unintended, creative interpretations. Hindsight is 20/20, right? And even when the can, their efforts to address exceptions result in laws complicated by nuance and ripe for further abuse.

It seems the Mass Appeals Court upheld a very generous interpretation of “Where are you from?” Assuming there isn’t more to the story, the question itself lacks sufficient context to assume that it was motivated by a desire to inquire specifically about this woman’s national origin. Regardless her appearance, language or accent one cannot assume others might believe her to be from another country.

However, law isn’t about a single objective interpretation any more than it is about the truth. It’s about competing interpretations, supported by carefully selected “evidence”, vying for judicial approval. Apparently this woman’s attorney was able to convince a judge that theirs was the “correct” interpretation of the law.

What is crazy to me, among everything within the ruling, is the $44K in attorneys fees. This was awarded by the housing board …the most pro-tenant biased judicial body in the state. If you’re an attorney and needed to charge $44K for your case to prevail, you had no case. This is a clear example of not what is right, but how much I can extract out of a situation and it adds to the black eye cast on the legal profession. There is a real disconnect with the judiciary on the equity of the parties in a landlord/tenant matter within the Commonwealth. Before the tenant rents, the landlord may have more leverage than the tenant (but by this ruling, that’s come into question), but given he/she likely has a mortgage to pay on the rental unit whatever leverage the landlord has may even be questioned. After the rental agreement is signed, the balance of power totally shifts heavily towards the tenant in the Commonwealth of Massachusetts. There are several websites and agencies that specialize on suing your landlord. For the landlord … start the meter running and hope those Nolo books you bought are correct. And in Massachusetts, unless you’re renting out your own owner occupied home of 3 units or less, the fines and penalties are the same as if you rent hundreds of units across the state. So you wanna rent out out mother’s house to help with her elder care expenses? Great, in the eyes of the Commonwealth there is no difference between you and the 50 unit building down the street owned by a corporation who owns hundreds of units. In every other instance and industry we hear Congress and Presidents talk about the plight of the small businessman. In MA, they give small landlords a short pier and tell them to swim. Serious changes need to be made in this area of the law and they need to happen now.

Although I am not familiar with Mass. housing laws, based on what you have provided, I have to agree.

I could not help but wonder how a rental agent could otherwise engage with the prospective tenant in a helpful way? Where the prospective tenant is coming from seems to be an opened-ended question that would hopefully elicit what the prospective tenant is interested in in their search. No one is out there looking for a new place if they are content with where they are living, or are under no compulsion to move. I suppose he could ask, “what are your objectives in your housing search?” but this seems a bit too formal. “Where are you from?” seems less imposing, compared with a more accusatory, “Why are you applying here?”

These identity issues are interesting. I know that in some parts of the country, “Where are you from?” is a basic getting to know you type question that is more related to cultural values and language. In other regions, “What do you do?” which relates more to education and social status.

John Cowherd

wordsofconveyance.com

gotham77

Don’t play dumb, you’re not very good at it.

Latino clients that are obviously from a foreign country? Since housing discrimination based on ethnicity and national origin is illegal, only a fool wouldn’t realize you can’t make “smalltalk” about where minority clients that are obviously foreigners are from. The agent doesn’t need that information to do her job. If she wants to make smalltalk, she can talk about the weather or how the Red Sox look this year. This is entirely the fault of the agent and you know that. This isn’t about what’s wrong with Massachusetts, this is about reactionaries trying to pretend that being white makes them a victim…which is sort of like complaining about how unfair it is that the disabled get all the best parking spaces.

http://itsaboutliberty.com/index.php MNHawk

You mean only someone that is so sick in the head, and is an un-American piece of Democrat garbage would think innocent small talk should be illegal.

You are right in one respect. It isn’t about what’s wrong with Massachusetts. It’s what’s wrong with the un-American garbage that live in Massachusetts.

gotham77

Are you finished?

http://itsaboutliberty.com/index.php MNHawk

When the trash of society cease their war on innocent speech, is when I’m done. What are you to do about it, Pajama Boy? A person so infantalized, they need protection from being asked, “so where are you from?”

Seriously, I can’t even imagine how pathetic it is to go though life, quivering in fear that someone might ask you that question. Then again, I’m not an un-American piece of Democrat garbage, so what do I know about their challenges in life are?

gotham77

They’re doing wonderful things with mental health treatments these days. It might even be covered by that health insurance the un-American Democrat garbage made you get. Good day.

http://itsaboutliberty.com/index.php MNHawk

Sucks you can’t counter a single thing I said. Then again, I’d expect no more from an infantalized person, quivering in fear from small talk.

Why is it un-American Democrat garbage cower from mere speech?

mmw9998

Only a dem would make someone purchase something they dont need, but that others like themselves do.l

mmw9998

Ahhhhhhhahahahahahahhahahahahhahaha…you are an idiot. No need to “play” dumb for you eh?

gotham77

You’re calling me an “idiot” because I’m telling you something you don’t want to hear. The law is clear, and if the agent had educated herself on it this wouldn’t have happened. Calling me names won’t change the law, sunshine. Grow up.

mmw9998

No, because ypu assume you know all about the ones you lecture and the hypocritical arrogance you dont even seem to realize you display. I am not even saying anything about the stupidity in the article, just the fact your comments show you really believe you think on a higher plane, while you brain obviously operates on a lower one. Thats it, just something you need to hear, want it or not.

brighton08

I think there must be more to this conversation that we have read. If I asked someone where they were from and got “Venezuela” then I would follow up by saying “wow, what a beautiful country – I have several friends from Caracas” which is true in my case but if you can’t make that claim, then make a connection in some other way – isn’t that what smalltalk is for? If it was just radio silence or insincerity/change the subject after the question, I can see why the person got offended

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Richard D. Vetstein, Esq. is a nationally recognized real estate attorney and past Chair of the Boston Bar Association's Title & Conveyancing Committee. For more information about him, click here. You can contact Attorney Vetstein at rvetstein@vetsteinlawgroup.com or 508-620-5352.